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March 5, 1992



The opinion of the court was delivered by: NEAL P. MCCURN

This action arises under the Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 - 2000e-17 (1988 & West Supp. 1991). Plaintiff alleges that she was sexually harassed by the defendants during her tenure as an employee of the defendant New York State-Council 82/AFSCME Joint Committee on Quality of Working Life. There are three motions now before the court:

 1. Defendants' motion for leave to reargue the issues addressed in this court's June 11, 1990 decision;

 2. Defendants' motion for summary judgment; and

 3. Plaintiff's motion to amend her complaint.


 From January, 1983 through May, 1988, the plaintiff, Susan McLaughlin, was employed as a staff member by the defendant New York State-Council 82/AFSCME Joint Committee on Quality of Working Life ("QWL Committee"). The QWL Committee was a joint organization comprised of a labor union (New York State Inspection, Security and Law Enforcement Employees, District Council 82 of AFSCME ("Council 82")) and the State (New York State Governor's Office of Employee Relations). The Committee was created to administer funds provided under the collective bargaining agreement between the State and the labor union. McLaughlin I, 739 F. Supp. at 99. Defendants Joseph Puma and Richard Bischert were members of the QWL Committee's executive committee. Defendant Thomas Gibbs was employed by New York State to negotiate and administer labor contracts with Puma's and Bischert's labor union. Id. at 100. The QWL Committee was disbanded in May, 1988, thus bringing to an end plaintiff's employment with the committee.

 A. Plaintiff's Claims of Sexual Harassment in the Workplace

 On August 26, 1987 and again on June 20, 1988, plaintiff filed complaints with both the New York State Division of Human Rights ("DHR") and the Equal Employment Opportunity Commission ("EEOC"), alleging that the defendants had sexually harassed her at her place of employment. After receiving negative determinations from both entities, plaintiff brought the present action in this court.

 Plaintiff states two causes of action in her complaint. Her first cause of action arises from incidents which allegedly occurred while she was employed by the QWL Committee. She alleges that "all of the defendants engaged in or cooperated with sexually discriminatory conduct which adversely affected the terms and conditions of her employment with the QWL Committee," in violation of 42 U.S.C. §§ 2000e-2(a) and (c) (1988). McLaughlin I, 739 F. Supp. at 100. The gravamen of this cause of action is that (1) Puma and Bischert created a hostile work environment for plaintiff during her employ, (2) Puma, Bischert, and Gibbs unlawfully retaliated against her after she filed her first complaints of sexual harassment, and (3) the ranking officials from the QWL Committee, the State, and Council 82 knew (or should have known) of Puma's and Bischert's discriminatory and retaliatory conduct, yet took no action to curb it. See id. (detailing the incidents alleged).

 In sum, plaintiff's first cause of action relates to the sexual discrimination she allegedly suffered while working for the QWL Committee; her second cause of action relates to her alleged wrongful termination from the Committee.

 Before filing the immediate action in this court, plaintiff filed a companion suit in New York State Supreme Court (Albany County) against, inter alia, Puma, Bischert, and Gibbs, raising tort claims for (1) intentional infliction of emotional distress, (2) prima facie tort, and (3) tortious interference with contract. In a memorandum-decision dated December 1, 1988, the state court dismissed the plaintiff's entire case, based on that court's finding that plaintiff's dismissal from the QWL Committee was not caused by defendants' acts of sexual discrimination, but rather was the result of a good-faith collective bargaining agreement between the union and the State to disband the committee altogether. McLaughlin I, 739 F. Supp. at 103 (citing State Court Record, Vol. I, at 7 (Hughes, J.)).

 B. McLaughlin I

 Plaintiff filed this suit in 1989, and defendants immediately moved to dismiss and/or for summary judgment, on four grounds:

 1. Plaintiff failed to state a prima-facie case under Title VII;

 2. Plaintiff is collaterally estopped from relitigating the issues addressed in the state court proceeding;

 3. Res Judicata precludes plaintiff from relitigating the incidents alleged in the state court proceeding; and

 4. Plaintiff's suit is barred by the statute of limitations.

 This court rejected defendants' motion in its entirety, except as it related to collateral estoppel of issues addressed in the state court proceeding. With respect to collateral estoppel, the court rendered the following decision:

 plaintiff is collaterally estopped from relitigating the issue of the reduction in funding of the QWL Committee, and her resultant termination, in this suit. Any errors that might have been committed by the state court (such as failure to permit discovery, failure to review the record in a light most favorable to the plaintiff, or failure to provide the plaintiff with sufficient time to develop her case) were subject to appeal-- and an appeal was not taken. Plaintiff cannot now contend, in this court, that the state was not a full and fair forum. . . . However, the removal of this issue from relitigation does not void either of plaintiff's claims. There are still valid theories with respect to harassment and retaliation, outside of the termination of plaintiff's job with the QWL Committee, which are not barred by the doctrine of collateral estoppel.

 Id. at 106 (emphasis in original). Both parties agree that McLaughlin I precludes plaintiff from litigating the claims that relate to her termination of employment. The remaining claims at issue pertain to the alleged sexual harassment and retaliation plaintiff endured while still employed by the QWL Committee. See id.2

 A. Defendants' Motion for Reconsideration

 The defendants move for an order, pursuant to Local Rule 10(M), granting them leave to reargue their motion to dismiss and/or for summary judgment that this court previously rejected in McLaughlin I. Defendants ask the court to reconsider two rulings in particular:

 1. that plaintiff came forth with sufficient evidence to withstand defendant's motion for summary judgment; and

 2. that plaintiff satisfied the statute of limitations.

 The defendants face a difficult challenge in pursuing this motion, because there are generally only three circumstances under which a court will agree to reconsider a prior decision. To successfully prevail upon the court to reconsider, the moving party must show the existence of either: (1) an intervening change of controlling law; (2) the availability of new evidence; and/or (3) the need to correct a clear error or prevent manifest injustice. Wilson v. Great Amer. Indus., 770 F. Supp. 85, 89 (N.D.N.Y. 1991) (McCurn, C.J.) (citing Doe v. New York City Dep't of Social Serv., 709 F.2d 782, 789 (2d Cir.), cert. denied sub nom, Catholic Home Bureau v. Doe, 464 U.S. 864, 78 L. Ed. 2d 171, 104 S. Ct. 195 (1983)). These criteria allow the court to balance the need to review its past decisions, in light of new developments or arguments, against the adversary's need to be protected from protracted relitigation of a thoroughly addressed issue.

 Defendants' arguments are wholly devoid of any new authority or evidence to justify reconsideration. Therefore, defendants must base their argument for reconsideration on grounds that a "manifest injustice" will occur if the court does not reconsider its previous rulings. See Doe, 709 F.2d at 789.

 The basis of defendants' first argument is that the court, in rejecting defendants' motion for summary judgment, relied upon improper affidavits. According to the defense, the material attestations in plaintiff's affidavits were submitted upon the "information and belief" of the affiants, and therefore should not have been considered by the court. Id. Without those attestations, the defendants contend, there was insufficient evidence upon which plaintiff could withstand defendants' motion. Id.; see, e.g., Anderson v. Liberty Lobby, 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (opponent must come forward with some evidence of disputed material fact to withstand motion for summary judgment).

 Indeed, Fed. R. Civ. P. 56(e) requires that "opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." See Schertz v. Waupacka County, 875 F.2d 578, 582 (7th Cir. 1989). Second Circuit case law is relatively clear that affidavits based only "upon information and belief" are not sufficient to defeat a motion for summary judgment, because they are not based upon the requisite first-hand knowledge. Chandler v. Coughlin, 763 F.2d 110, 113-14 (2d Cir. 1985); see Smith v. American Express, 853 F.2d 151, 155 (2d Cir. 1988). Therefore, if plaintiff's argument in opposition to summary judgment had relied exclusively upon such evidence, then the defendant should have prevailed on its motion for summary judgment.

 Upon reviewing the record, the court finds the defendants' argument to be totally specious. This conclusion is mandated by the fact that, in deciding McLaughlin I, the court did not rely upon affidavits that were submitted merely upon the affiant's information and belief. The court has scrutinized McLaughlin I, searching for every reference therein to plaintiff's affidavits. Every allegation cited in McLaughlin I, with one inconsequential exception, is based upon the direct knowledge of the affiant. *fn3" See McLaughlin I, 739 F. Supp. at 101-03. Not surprisingly (with the one exception mentioned in n.3), the defendants' memorandum supporting its motion to reargue is devoid of any credible reference to this court's reliance on affidavits submitted "upon information and belief." Although defendants do cite in their briefs to paragraphs of affidavits submitted upon information and belief, there is no doubt that none of those paragraphs were relied upon by this court in deciding McLaughlin I.

 In light of these incontrovertible facts, the propriety of defendant's motion is highly questionable. It is difficult to fathom how the defendants can argue that McLaughlin I was clearly erroneous or otherwise created "manifest injustice" to warrant reconsideration of that decision when there is not a scintilla of fact to support their argument.

 Defendants' second ground for requesting leave to reargue concerns this court's ruling that, with respect to defendants' motion to dismiss on statute of limitations grounds, "it is best to permit the parties to go forward with discovery so that any subsequent decision may be made on a more complete factual record." McLaughlin I, 739 F. Supp. at 108. Defendants present no new authority or evidence to justify reconsideration. Therefore, defendants are once again left to argue that this court should grant leave to reargue because of the need to correct a clear error in McLaughlin I, or to prevent manifest injustice. Wilson, 770 F. Supp. at 89.

 To review, suits instituted through a state agency (such as the DHR) alleging unlawful discrimination pursuant to 42 U.S.C. § 2000e-2 and -3 must be filed with the EEOC within 300 days of the alleged unlawful acts. McLaughlin I, 739 F. Supp. at 107 (citing 42 U.S.C. § 2000e-5(c)). *fn4" Defendants argued in McLaughlin I that the plaintiff did not file her EEOC claim within 300 days of the alleged unlawful conduct, and that the only timely claims involve "'conclusory allegations of wrongdoing unsupported by any factual information.'" Id. (citing Union Def. Mem., at 37). As such, defendants argued that plaintiff's claims are time barred.

 This court relied upon the "continuing violations doctrine" to reject defendants' argument and find that plaintiff's claim was timely as to all allegations. Id. at 107-08. Specifically, the court held that further discovery could allow plaintiff to show a series of related discriminatory and retaliatory acts, at least one of which fell within the limitations period, thus warranting delay of the commencement of the statute of limitations until the last unlawful act occurred. Id. (citing Blesedell v. Mobil Oil, 708 F. Supp. 1408, 1414-15 (S.D.N.Y. 1989) (discussing Second Circuit standard for application of the continuing violations doctrine)). For the interim (until further discovery is completed), the court held that plaintiff had made a sufficient showing of the existence of a continuing violation of Title VII to at least temporarily withstand defendants' motion. Id. at 108. Due to defendants' current motions, further discovery has still not occurred.

 The defendants' own arguments help the court resolve this leg of their motion. The defendants implicitly acknowledge that the court's decision to allow discovery to proceed before ruling further on the statute of limitations issue is in accord with the general case authority on this point. See Def. Mem. (6/20/90), at 5. In light of the authority, the court's decision to allow discovery to proceed so that a future decision can be made on a more complete factual record, see McLaughlin I, 739 F. Supp. at 108, can hardly be deemed "clearly erroneous" or "manifestly unjust." The defendants' reliance on this court's decision in Dolittle v. Ruffo, No. 88- CV-1175, 1990 U.S. Dist. LEXIS 376, 51 Fair Empl. Prac. Cas. (BNA) 1790, 1990 WL 2648 (N.D.N.Y. 1990) (McCurn, C.J.), is puzzling because that case clearly stands for the proposition that the court should await a fully developed record before rushing to a decision on statute of limitations defenses. Id. at *3

 Defendants have failed to convince this court that McLaughlin I should be reconsidered. Accordingly, defendants' motion for leave to reargue is denied with prejudice.

 B. Defendants' Motion for Summary Judgment

 Defendants' current motion for summary judgment is founded on two premises. First, Title VII provides only for equitable, not compensatory, relief. Second, plaintiff is restricted to litigating her sexual harassment claims only as they relate to the alleged hostile work environment at the QWL Committee. In other words, plaintiff cannot argue that she was wrongfully terminated, and thus cannot seek reinstatement to her former position or back-pay. She is limited to recovering equitable relief for damage she allegedly sustained during her employ with the QWL Committee. The necessary conclusion, according to the defense, is that plaintiff has no viable remedy available to her as a matter of law, even if liability is proven. The defendants argue that absent an available remedy, plaintiff cannot maintain this action and summary judgment should be granted.

 1. Retroactivity of Civil Rights Act of 1991

 After these motions were filed, and two years after plaintiff commenced this suit, Congress enacted the Civil Rights Act of 1991, Pub L. No. 102-166, 105 Stat. 1071 (1991) ("Civil Rights Act" or "Act"). The new Act amends Title VII in a manner which could be fatal to defendants' argument. Specifically, the Act amends Title VII to permit a prevailing plaintiff to recover compensatory and/or punitive damages against a respondent who engaged in intentional discrimination. Id. § 102, 105 Stat. 1072 (to be codified at 42 U.S.C. § 1977A). *fn5" If the damages provisions of the Act are applicable to the present case, then defendant can no longer argue that plaintiff has no viable remedy available to her as a matter of law, and their motion for summary judgment will be defeated.

 Of course, the Act will affect this case only if its damages provisions apply retroactively, i.e. to cases pending when the Act took effect. The Second Circuit recently had an opportunity to decide whether the Civil Rights Act applies retroactively to cases that were pending on its effective date. The court avoided a ruling, however, because the issue had not been properly briefed and argued. Song v. Ives Laboratories, No. 394, 91-7621, 1992 WL 32054, at *7 (2d Cir. Feb. 25, 1992). This court must therefore determine whether the damages provisions of the Civil Rights Act apply to cases that were pending when the Act took effect.

 a. Congressional intent

 In determining whether the Act-- or any portion of the Act-- applies retroactively, the court must be guided initially by Congressional intent. Kaiser Alum. & Chem. Corp. v. Bonjorno ("Bonjorno"), 494 U.S. 827, 110 S. Ct. 1570, 1577, 108 L. Ed. 2d 842 (1990); DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 911 F.2d 1377, 1384 (10th Cir. 1990). Congressional intent is determined primarily from the plain language of the statute, and only secondarily from the Act's legislative history. See DeVargas, 911 F.2d at 1385-88; see also, e.g., Bonjorno, 110 S. Ct. at 1575 & 1577; Simons v. Southwest ...

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